Naperville Area CHamber of Commerce Government Affairs Roundup

The United States Supreme Court announced its decision in South Dakota v. Wayfair, Inc. on Thursday morning, proclaiming that States may require online sellers to collect sales tax in their State regardless of whether the seller has a physical presence within the State. This decision overturns Quill Corporation v. North Dakota, which introduced the physical presence requirement in 1992. The majority opinion was written by Justice Kennedy. He wrote that "[w]hen a consumer purchases goods or services, the consumer's State often imposes a sales tax." He went on to declare that "[a]ll concede" this taxation is lawful. However, he wrote that the physical presence requirement in "Quill puts both businesses and many interstate businesses with physical presence at a competitive disadvantage relative to remote sellers." He added that "[r]emote sellers can avoid the regulatory burdens of tax collection and can offer de facto lower prices caused by the widespread failure of consumers to pay the tax on their own." In rejecting the physical presence requirement, the opinion declared that the physical presence rule is not clear, is not easy to understand, and is not easy to apply. Justice Kennedy added that it "produces an incentive to avoid physical presence in multiple States. Distortions caused by the desire of businesses to avoid tax collection mean that the market may currently lack storefronts, distribution points, and employment centers that otherwise would be efficient or desirable." Justice Kennedy cited lost revenue for States at approximately $8 to $33 billion dollars per year and growing. The majority opinion specifically cited the fact that the South Dakota law only applies to sellers that deliver either $100,000 worth of goods or services or 200 or more separate transactions as proof that the sellers had met the "substantial nexus requirement of Complete Auto." There are important limitations to this decision that should be acknowledged. The majority opinion wrote about the rights and responsibilities of the State but did not include local municipalities. Therefore, the State of Illinois may be able to require an out-of-state seller to collect and remit the 6.25% State sales tax under Wayfair. However, it does not seem that Naperville or DuPage County could rely on Wayfair to require out-of-state sellers to collect and remit any additional County or Home Rule Sales Tax. The decision was split 5-to-4. Justice Kennedy wrote the opinion for the majority and was joined by Justice Alito, Justice Ginsburg, Justice Gorsuch, and Justice Thomas. Chief Justice Roberts penned the dissent and was joined by Justice Breyer, Justice Kagan, and Justice Sotomayor. Additional Links: https://www.nytimes.com/2018/06/21/us/politics/supreme-court-sales-taxes-internet-merchants.htmlhttps://taxfoundation.org/supreme-court-decides-wayfair-online-sales-tax-case/